Sackett v. EPA Final Act

 In 2005 Mike and Chantell Sackett purchased less than an acre of land to build a home near to but not adjoining a lake. The lake front homes had already been built. After obtaining building permits from the county, they began the building process by spreading fill material over the lot. Two people from the U.S. EPA and one person from the Army Corps of Engineers appeared and issued the Sacketts an “Administrative Compliance Order” (ACO), alleging the land was a wetland subject to the Clean Water Act jurisdiction and ordered the Sacketts to restore the land to its original condition or face $37,500 in fines per day for violation of the Clean Water Act and undisclosed to the Sacketts, an additional $37,500 per day for violating the compliance order. The Sackett family appealed for a hearing believing that their land was not a wetland, but was denied by EPA and the federal court.

In addition, under an agreement between the U.S. EPA and the Army Corps of Engineers the Sacketts could not obtain a permit (even if they wanted to) until the open enforcement action was concluded. The Army Corp of Engineers insisted the site must be restored to its previous condition to apply for a permit to place fill material on a wetland. However, under the new guidance the EPA and Army Corps of Engineers can determine a site is a wetland subject to the Clean Water Act based on “general scientific literature,” in lieu of actual case-specific analysis of the water itself, and so the Sacketts found themselves in a Catch 22.

In 2012 the U.S. Supreme Court unanimously ruled that the Sacketts may seek pre-enforcement judicial review of ACOs and that their inability to seek pre-enforcement judicial review of the ACO violated their rights under the Due Process Clause of the U.S. Constitution. The EPA had maintained that the ability to issue compliance orders with huge financial penalties without the ability to seek recourse was an effective means to obtain compliance. However, the Supreme Court disagreed. The effective scope of the federal regulations and power had been so far expanded by the 2011 Guidance to include any conceivable naturally occurring water.

In the latest case, Mike and Chantell Sackett sued, challenging the EPA's interpretation of Waters of the United States. The Ninth Circuit Court of Appeals had upheld the district court's opinion, finding that the Clean Water Act  covers wetlands with an “ecologically significant nexus” to traditional navigable waters and that the finding by the EPA satisfied that standard. 

The EPA had classified the wetlands on the Sacketts' lot as "waters of the United States" because they were near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake. The EPA argued that the wetlands on the Sackett property were "adjacent" to an "unnamed tributary" on the other side of a 30-foot road. To establish a significant nexus, the EPA combined the Sacketts' lot together with the Kalispell Bay Fen, a large nearby wetland complex that the Agency regarded as "similarly situated."

Their argument did not sway a single justice. The Supreme Court found that the EPA had overstepped its authority in asserting jurisdiction over the Sacketts' property. However, the justices disagreed on the proper standard for how to determine when the agencies may assert jurisdiction over an adjacent wetland under the Clean Water Act.

The Clean Water Act of 1972 makes it a crime to discharge pollutants into the "navigable waters of the United States." However, what constitutes a "pollutant" or "navigable water" has been open to interpretation and a series of guidance documents over the years have continually expanded the definition of “navigable waters of the United States” until it was defined by the US EPA and the Army Corps of Engineers as:

• Traditional navigable waters
• Interstate waters
• Tributaries to navigable waters and interstate waters
• Seasonal tributaries, steams or creeks
• Wetlands adjacent to any of the above
• And the agency added the “other” category that seems to include everything but swimming pools, fountains, irrigation ditches and stock watering systems.

The majority opinion, written by Justice Alito and joined by Justices Roberts, Thomas, Gorsuch and Coney-Barrett, did effectively narrow this interpretation of the reach of the Clean Water Act. The EPA had argued that the significant nexus test has been and remains sufficient to establish jurisdiction over "adjacent" wetlands. The agencies asked the Court to defer to its understanding of the Clean Water Act’s jurisdictional reach as set out in its January 2023 Waters of the United States rule. The court offered multiple reasons for concluding that the agencies' interpretation is inconsistent with the text and structure of the Clean Water Act. 

The Supreme Court was having none of it. The court held that "EPA's interpretation gives rise to serious vagueness concerns in light of the Clean Water Act's criminal penalties." Under the significant nexus test, "almost all wetlands and waters" can be reregulate and the actions of the EPA could be capricious and targeted. Citing due process protections, the court was concerned that ordinary people would not be able to determine what conduct is prohibited under the significant nexus test. The opinion noted that the Clean Water Act can criminalize even mundane activities and, therefore, a "staggering array of landowners are at risk of criminal prosecution or onerous civil penalties." Anyone could be treated as the Mike and Chantell Sackett were with little real recourse. It has taken 18 years and the monumental costs of two cases argued before the Supreme Court for the Sacketts to be allowed to build their home.

While the 2023 Waters of the United States rule was not technically before the court, the majority opinion addressed the EPA's arguments and refused to defer to the EPA's interpretation of Waters of the United States based on "significant nexus”(1) in that rule effectively striking down that rule. There needs to be a reasonable, obvious and consistent standard, for navigable waters of the United States to protect them from industrial and wastewater discharge. Though the Clean Water Act was designed to protect our surface water from point source pollution, wetlands and groundwater also need to be protected.

The proper way to protect the wetlands, groundwater and seasonal streams that we now understand are so essential to a balanced ecology and healthy rivers and streams  may be regulations for the application of fill material, land use, non-point source pollution and other local issues. These are not issues addressed under the Clean Water Act. These issues need to be consistently and properly addressed on the state and local level. Something that is often hard to do. The Clean Water Act may be the wrong tool for a good cause. Congress may need to act to create the basic framework for laws to protect the sustainability of our water resources for our future. It is not the court’s job nor the agency’s job to create law.

(1) A prior Supreme Court opinion Rapanos v. United States, (2006) the court failed to reach a majority, resulting in two different standards to choose from – the "significant nexus" standard by former Justice Kennedy's concurring opinion and the "relatively permanent" standard as set forth in the Rapanos plurality opinion written by the late Justice Scalia. This Court has agreed with the Scalia standard that to assert jurisdiction over an adjacent wetland under the Clean Water Act, a party must establish "first, that the adjacent body of water constitutes a relatively permanent body of water connected to traditional interstate navigable waters; and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins.'"